Ferdinand and Ferdinand and Anor - [2010] FMCAfam 465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FERDINAND & FERDINAND & ANOR

[2010] FMCAfam 465

FAMILY LAW – Property dispute – alleged debts to husband’s mother (the intervenor) – intervenor incapacitated and affairs conducted by lawyers appointed by VCAT – intervenor filing affidavit but not available for cross-examination – husband allegedly violent and/or controlling – Kennon case – consideration of competing claims of intervenor and parties.

Family Law Act 1975, s.106

Kennon v Kennon (1997) FLC 92-757
Biltoft & Biltoft (1995) FLC 92-614
Worsnop v Worsnop (No 2) [2007] FamCA 1315

Applicant:

MS FERDINAND

Respondent:

MR FERDINAND

Intervenor:

MS F

File Number:

MLC 13479 of 2007

Judgment of:

Burchardt FM

Hearing dates:

1, 26 & 29 March 2010

Date of Last Submission:

29 March 2010

Delivered at:

Melbourne

Delivered on:

18 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr P. Harris

Solicitors for the Applicant:

McNab McNab & Starke

Counsel for the Respondent:

Mr R. Sorensen

Solicitors for the Respondent:

Mendis & Gibson Lawyers

Counsel for the Intervenor:

Ms E. Goldberg

Solicitors for the Intervenor:

Septimus Jones & Lee

ORDERS

Sale of the Former Matrimonial Home

Failing agreement within 30 days between the parties the former matrimonial home situate at and known as Property S be sold at public auction with the vendors’ agent to be agreed between the parties or failing agreement to be appointed by the President of the Real Estate Institute of Victoria and the proceeds thereof be applied:
(a)first to discharge any costs and commissions of sale; and
(b)second, the remainder be paid:
(i)as to 20% to Messrs FTL Judge & Papalao Pty Ltd for and on behalf of Ms F;
(ii)30% to the husband; and
(iii)50% to the wife.

Removal of Caveats

Any party having registered a caveat in respect of the property is required forthwith to remove same at their own expense and in the event of default within 14 days the Registrar of this Court is authorised pursuant to s.106 of the Family Law Act 1975 (“the Act”) to execute and obtain discharge of the same.

Superannuation and Chattels

Each party is to retain to the exclusion of the other any interest they may have in any superannuation fund or scheme in which they are presently a party.
The wife is to retain all chattels situated in the former matrimonial home.
The husband is to retain all chattels contained in the garage adjoining the former matrimonial home.

Collection of Chattels from the Garage

The husband is not permitted to enter onto the former matrimonial home including the garage. To the extent that he may wish to remove the chattels situated in the garage he is to nominate by his solicitor a reasonable time for the collection of same by third party agents. The wife is not unreasonably to refuse the third party agents access to the garage.
The wife is not permitted to enter the garage attached to the former matrimonial home save that in the event that the husband does not cause the chattels in the garage to be collected within 60 days of these orders the wife is at liberty to dispose of the same by whatever means and in whatever fashion she may choose.

Final Disposition

To the extent not otherwise provided each party is to retain for their own benefit to the exclusion of the other any chattels, choses-in-action or other matters presently within their possession.
Liberty to apply in respect of the implementation of these and any further issues as to chattels in the former matrimonial home. Any issue regarding chattels is to be notified to the other party within 14 days of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Ferdinand & Ferdinand & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 13479 of 2007

MS FERDINAND

Applicant

And

MR FERDINAND

Respondent

And

MS F

Intervenor

REASONS FOR JUDGMENT

Introductory

This is the property component of a very long-running and very sad dispute. Orders have already been made in relation to children, but that has not diminished the intensity of the parties’ emotions nor has it produced any common ground.
This is a difficult case made more difficult again by the fact that although the parties have filed very substantial amounts of material, there are a number of important matters in respect of which the evidence remains far from clear. This extends by way of illustration only even to such matters as the date of separation, which remains unclear.
This is also a case in which it is not possible properly to dispose of the arguments and submissions put forward by the parties without making findings that are, at least in part, critical of the parties themselves. This is all the more regrettable in circumstances where it is quite apparent the emotions of the parties have been rendered raw already by their interrelationship with one another and the surrounding matters raised by this proceeding, including the proceeding itself.

Background

The applicant wife was born [in] 1961 and the respondent husband [in] 1960. Both were born in Britain and have lived most of their lives there.
The parties appear to have met, according to the wife’s first affidavit filed on 13 December 2007, in about 1978 or 1979 in London when they began dating. According to the wife, the husband’s parents emigrated to Australia in about 1988 or 1989 and thereafter the parties started living together at the husband’s parents’ home and what the wife refers to as “my flat” in London.
The parties married [in] 1992.
There are three children of the marriage: [X] born [in] 1992, [Y] born [in] 1994 and [Z] born [in] 1996.
The parties agree that towards the end of 1996 they decided they wanted to live in Australia and applied to emigrate. In about January or February 1997 the Australian Government granted them visas as permanent residents of Australia and in May 1977 the parties travelled to Australia “to have our visas stamped”. I infer that it was a condition of their visas that they arrive in Australia within a given period of time. They went around Australia in order to decide which city they would live in.
In about February 2002 they packed their belongings together and moved to Australia. In April 2002 they moved to [S] and bought the former matrimonial home at Property S. The home was bought unencumbered.
Thus far the background information is uncontroversial. It is deposed to by the wife in her first affidavit, as I have indicated, and is expressly agreed with in the first affidavit filed by the husband on 11 January 2008.
Thereafter, however, any question of agreed facts becomes far more problematic.
One of the difficulties that confronts the Court in seeking to determine this matter is the format that the parties have adopted for their affidavits. Anyone reading the substantial quantity of material that the parties have felt appropriate to bring before the Court will rapidly be struck, if they are anything like me, by the fact that neither of the two parties has ever put their evidence in an affidavit in any kind of structured historical way. Rather, right from the start, there has been an interspersion of facts relevant to the proceeding with litanies of mutual complaint.

Some Preliminary Remarks about the Parties

In order that what follows can be properly understood, it is appropriate to say something about the two primary parties at this stage. They were both the subject of psychiatric examination pursuant to Court order.
Dr D, consultant psychiatrist, prepared a report on each of the parties in December 2009. This was predominantly in the context of the then extant dispute as to children’s issues. Nonetheless, Dr D’s reports are illuminating.
Dr D interviewed the wife on 3 December 2009 for two hours. Dr D records the following observations:
a)She presented as a somewhat vague historian. Her recollection for specific details of her relationship history with Mr Ferdinand was often imprecise. She was selectively guarded and evasive in discussing allegations that she had been unfaithful in the marriage.
b)She was “clearly exhausted by Mr Ferdinand’s determined nature to reconcile the relationship”.
c)Ms Ferdinand did not present with features of a mental illness. Her history suggested a lack of self-confidence and inhibited behaviour.
d)She likely avoided confronting Mr Ferdinand despite concerns that he was controlling.
The above matters are taken from under the heading “Mental State Assessment” in Dr D’s report. Under the heading “Opinion and Recommendations,” Dr D recorded:
“Ms Ferdinand is a 48-year-old woman who presents without features of a mental illness. Her presentation in the interview and the history provided suggests she has lacked self-esteem, self-confidence and assertiveness skills. Her avoidant style has possibly contributed to the accommodation of Mr Ferdinand being able to sustain his controlling nature in the relationship.”
In my opinion the above excerpts of Dr D’s report coincide entirely with both the affidavit material filed by the wife and by her demeanour when giving evidence both in-chief and in cross-examination.
In respect of Mr Ferdinand, whom Dr D saw on 12 November 2009 for two hours and by telephone on 6 December 2009 for 45 minutes, Dr D made the following observations under the heading “Mental State Assessment”:
a) He impressed as an intelligent man but obsessional in nature. He provided an overly inclusive and pedantically detailed account of his life history, including details of his relationship with Ms Ferdinand. He was polite and cooperative but somewhat difficult to interrupt. He was determined to present information in a manner that was precise and inclusive. He appeared to think in a rather rigid and inflexible manner. He found it difficult to answer questions that involved a description of emotions. He consistently rambled in a partly tangential and irrelevant manner. He notably lacked insight into his own personality style. He pervasively attributed blame and criticism to others including his wife and the police. He appeared to be a generally critical and intolerant man as evidence by his chain of complaints exhibited in the interview and throughout his Affidavit material.
(b) He could not look inward and reflect upon his own possible contribution to the problems in evidence over the last few years in particular. He clearly held rigid views on issues pertaining to morality and family values.
(c) He applied concepts he had used in his [occupation omitted] background to address complex emotional issues in evidence in his failing marriage.
(d) He appeared to lack insight into the position held by

Ms Ferdinand; that being the relationship was doomed.

Mr Ferdinand was unconvinced that the relationship could not be reconciled in the future despite glowing evidence that this was unrealistic. Mr Ferdinand communicated a pattern of mistrust and suspicion of others and he appeared to interpret the actions of others as malevolent suggestive of a paranoid stance.
Under the heading “Opinion and Recommendation” Dr D observed inter alia:
Mr Ferdinand is a 49 year-old man who presents with features on mental state examination and personal history of obsessional personality traits. He does not present with features of a mental illness. He is predisposed to being preoccupied with details, rules, order and organization. He presents as conscientious and inflexible about matters of morality and values. He displays features of rigidity and stubbornness. His paranoid stance as evidenced by an air of mistrust and suspicion of others motives as being malevolent has been inflamed by problems arising from the breakdown of the marriage.
Mr Ferdinand lacks insight into his personality style. He lacks the capacity for self-reflection and self-examination. Assuming his assertions of infidelity to be true he may have cause for feeling hurt and betrayed. However, Mr Ferdinand has not examined the nuances of his relationship with Ms Ferdinand and how the dynamic between them developed. He has acquired the belief that all problems can be fixed, irrespective of cause, as he has utilised in his field of [occupation omitted]. He lacks sufficient emotional intelligence to understand that relationships are far more complex and may not fit into the realm of being “fixed.” He has not acknowledged fully that Ms Ferdinand has not wanted to reconcile the relationship. He continues to hold false hope that one day the relationship may mend.
Mr Ferdinand denied that he has been threatening, aggressive, violent or intimidating. The level of police involvement alone would suggest he has been less than cooperative.
Mr Ferdinand ideally requires individual psychotherapy to assist him in gaining insight into his personality style and the likely contributing influence he has had on the marriage’s demise and the ongoing issues. He is unfortunately a poor candidate for therapy because he lacks trust in professional counsellors.
It should be noted that I did not re-read the file before the commencement of the property hearing, which these Reasons for Judgment address. It was far too big.
Thus while I had read Dr D’s reports in the past in preparation for the hearing of the children’s matters, which eventually resolved by consent, Dr D’s reports were not in my mind when I observed the parties give their evidence.
It was only when I came to read the entirety of the file, following the reservation of my judgment, that I re-read Dr D’s reports. I have been quite astounded by the extent to which his observations, made albeit in the context of a children’s dispute, reflect exactly my own impressions and conclusions about the personalities of the two primary parties. The remarks I have extrapolated are all entirely consistent with the affidavit material filed by Mr Ferdinand and by my impression of him when he gave evidence.
The reason why I have set out this material at length is because in my opinion it gives an informative insight into the nature of the disputes that rage over all the remaining facets of the case.
Although it is not easy to do so, because of the way the parties have prepared their materials and presented their arguments, I think it is still appropriate to endeavour to apply the usual four-stage methodology to family law property cases, although plainly regard will need to be had during this process to the interests of the intervenor, to whom I shall come in due course.

The Pool

There is no doubt whatsoever that the primary asset owned by the parties is the former matrimonial home. It has been the subject of various appraisals (in the order of $250,000) and one sworn valuation. That valuation is exhibit JRF2 to the husband’s affidavit filed on

4 December 2009 and values the property at $315,000.
Despite the very substantial amount of material filed, there is almost nothing in the materials that I have been able to see as to the purchase price of the property in 2002. Should I have overlooked some material I make little apology because the way in which it is all presented is so hotchpotch, but as far as I can see the only reference to the purchase price of the property is in paragraph 29 of the wife’s affidavit filed on 28 November 2008 where she asserts that the property was bought for $195,000 and that all the funds for that purchase came from the husband.
Both sides have small amounts of superannuation. The husband formerly had $16,593 on 8 February 2008 but has asserted a withdrawal of some $10,000 thereafter on hardship grounds. The wife’s superannuation is of the order of $8,500. Each of the parties has a car but the material suggests these are of minimal value and they are not the subject of any expert evidence in any event.
The remaining matters in issue are chattels which are the subject of extensive dispute.
The husband’s obsessional concentration on what are now rather outdated white goods is only illustrative of the sort of matters that Dr D described. I am of the clear view that insofar as the wife has retained any white goods such as a refrigerator or the like, which were clearly the property of both parties during the marriage, these are now of minimal value and should not attract any adjustment.
Furthermore, there has been a substantial amount of debate about three so-called Fabergé eggs. These were allegedly bought for £300 each in France and are clearly replicas rather than originals. The husband says that the wife has them and/or has destroyed them and the wife says the husband has them and she does not. Neither version is more compelling than the other nor was either of them shaken in cross-examination. There is no alternative but to presume that the eggs are lost and I will not include them in the pool.
The husband asserts that he has a substantial amount of items in the garage attached to the former matrimonial home. He also complains that the wife has from time to time damaged some of the chattels in the garage. I do not accept that assertion. One area of the wife’s evidence that was to my mind convincing was her complete lack of interest in anything in the garage and her desire to have it emptied of the husband’s chattels. I will provide that the husband will be able to remove the chattels from the garage.
There is no evidence, leaving aside the question of jewellery, that any of the chattels in the possession of either of the parties are of any sufficient value to be appropriate to be allocated any value. No expert witness has been brought as to any of these matters and their purchase is now so long ago as to render any initial purchase price misleading insofar as any attempt to value them is concerned.
Another bitter area of dispute was the suggestion that the wife had in her possession a number of very valuable pieces of jewellery. I have seen purchase receipts for some jewellery, some of which was, it must be said, relatively expensive when it was bought, but there are no up-to-date valuations.
Furthermore, while jewellery obviously has a purchase price, that is not its re-sale value. I am entitled to and do take judicial notice of the fact that any jewellery bought from a jeweller is highly likely to be worth only a fraction of the purchase price were it to be re-sold. That, however, sets to one side the fact that some jewellery may appreciate in value if it is of sufficient quality. There is no evidence before me that the jewellery to which so much reference has been made is of that character.
In the ultimate, I am prepared to treat the wife’s indication in her initial financial statement, filed on 13 December 2007, of $2000 as the value of the jewellery as an appropriate admission against interest. At that time the jewellery had not become a polarising issue between the parties and it represents, in my opinion, the best the Court is likely to be able to do with this somewhat arid area of controversy.
Thus, for all practical purposes, the pool consists of the value of the house ($315,000), cars (each party to retain their own – no value allotted), chattels (the wife to retain those in the matrimonial home and the husband to retain those in the garage – no value allotted), superannuation (the husband’s superannuation entitlement as at

17 April 2009 was $3,601.90 following withdrawal of $10,000 on

31 March 2009 (see exhibit JRF1 to his affidavit sworn 30 November 2009) (the wife $8,500), the wife’s jewellery ($2,000.00).
Thus far, the question of the pool has been relatively straightforward but at this point, it is necessary to introduce and deal with the claims made by the intervenor and the husband, who supports the intervenor.

The Claims of the Intervenor – the Affidavit Evidence

It should be noted by way of introduction that this aspect of this case is by far the most factually and legally difficult. The evidence, as will be seen, is an almost impenetrable morass.
Ms F, the mother of the respondent husband, first sought to intervene in these proceedings at the hearing on 15 December 2008, at which time she was granted leave to intervene upon her filing and serving an application and affidavit in support on or before 27 February 2009. That application and affidavit were indeed filed on 27 February 2009. The application sought that the intervenor be paid $125,000 within

30 days.
The affidavit filed by the intervenor brings into play an aspect of the narrative that had already been touched on at least in part by the parties, but which I am endeavouring to deal with as a discrete issue.
Putting the matter shortly, it is the husband’s case that the purchase price of the former matrimonial home was wholly, or almost wholly, financed by a loan or loans originally taken out by him from some friends in England called Mr and Mrs P.
It will be necessary to traverse the evidence in respect of this matter in some detail, but it is sufficient to record that the broad outline of the husband’s case is that the loan from [Mr & Mrs P] was repaid with the assistance of a further loan from his mother, the intervenor, and that this sum should now be repaid as a priority before any resolution of the disputed matrimonial interests.
It should be noted that the wife’s position has always been that she knew nothing of any of these loans, which if they did take place at all were wholly personal to the husband and should be wholly his responsibility.
At this point, and I fear there is no way around it, it is necessary to traverse the evidence about this whole question of the loans in some detail, in the order in which that evidence was put forward.
In her first affidavit filed 13 December 2007, the wife merely deposed to the purchase of the matrimonial home and the fact that she and the husband moved into it in April 2002. She made complaint that during the relationship the husband had been very controlling of her and the finances of the couple. That is a matter to which I shall return under the question of contribution.
In her financial statement, filed likewise on 13 December 2007, the wife gave an estimate of the total value of property owned by her as $132,287, of which her share of the home accounted for $120,000 as an estimate.
In his first affidavit filed on 11 January 2008, the respondent husband said that he had been in control of the finances “because the Wife has a complete inability to control finances and no ability to save money”. He made further complaints to which I shall return under the heading of Contribution.
He confirmed the purchase of the property in 2002. Although he had much to say as to various matters, he said nothing else about the purchase of the matrimonial home.
In his financial statement filed on 5 February 2008, the husband gave an estimate of his share of the matrimonial home as $240,000, which in the circumstances seems more likely to have been an estimate of the entire value of the property rather than as to half.
Under the heading “Your Liabilities”, he relevantly described a loan in the following terms “Promissory note to Mrs P $E134722.00”.
In her affidavit filed on 28 November 2008, the wife said at paragraph 29:
“As to the purchase of the matrimonial home, I recall that $195,000 was paid for this purpose. The funds were provided by my husband. I knew that he had a bank account in Perth and that he had a bank account or accounts in the United Kingdom. I do not recall the identity of the banks, but one may have been the Halifax Bank.”
In paragraph 31, the wife continued:
“My husband now says that he signed a Promissory Note to a Mrs P. I do know of a Mrs P, but until this proceeding commenced my husband had never mentioned that he had borrowed money from Mrs P for any purpose, nor had he told me that he had signed a Promissory Note. A copy of the supposed Promissory Note provided by my husband’s solicitor to my solicitor is dated 9 May 1998 claims that the borrowing was for “Property Holdings in Australia”. My husband and I did not move to Australia until 2002. If he did enter into an arrangement with Mrs P, he did so without my knowledge, agreement or authority. I have never been provided with any information or documentation about any arrangement with

Mrs P. For that reason, I do not accept that my husband borrowed £50,000 from Mrs P, or that he borrowed any money from Mrs P at all. For the same reason, I do not accept that any amount has been repaid or is due to be repaid to Mrs P.”
The next mention of this aspect of the matter was in the husband’s affidavit filed on 16 December 2008. Relevantly, he deposed that his mother intended to intervene in the proceedings, and stated at paragraph 15:
“My mother intends to intervene because she has repaid the debt owed to Mrs P, and therefore says that she has a interest in the matrimonial home. I can confirm that I have been paying the original debt to Mrs P via payments to my mother, and there is an outstanding debt of approximately $147,000.”
The next relevant material, filed on 27 February 2009, was that of the intervenor, to whom I now return. In her affidavit in support, the intervenor deposed, obviously enough, that she was the mother of the respondent husband. She deposed on the basis of what is clearly hearsay that her son had informed her that:
a)on 9 May 1998 the husband borrowed £50,000 from Mrs P;
b)the purpose of the loan was to permit the husband to purchase a home in Australia;
c)the husband used those moneys to facilitate the purchase of the matrimonial home.
In paragraph 4 of her affidavit, the intervenor went on to say:
“At the request of [Mr Ferdinand], my late Husband and I have repaid the debt to Mrs P by:
(a) An initial payment of £20,000 in August 2002 which monies were withdrawn from our account with Lloyds Bank.
(b) A further payment of £30,000 on 26 January 2005 which monies were withdrawn from our account with Barclay’s Bank.”
The intervenor went on to depose that the £50,000 “paid by me on his behalf” was not a gift and would be repaid to the intervenor “as had been the situation with Mrs P”.
The affidavit went on to attest that the repayment of moneys due would be charged against the matrimonial home and that the intervenor had lodged a caveat to secure her debt.
She went on also to say, “The sum of £50,000 now equates to approximately AUD $125,000. I require the repayment of the monies due to me forthwith.”
It should be noted in parentheses that that affidavit, drawn by lawyers acting for the intervenor, made no mention of any accrual of interest between the time of the alleged repayments by the intervenor to [Mr & Mrs P] in August 2002 and January 2005 and the swearing of the affidavit on 26 February 2009.
The next material development, albeit that it happened in a slightly strange way, was the affidavit filed by the husband on 30 April 2009. That affidavit is in the main a litany of complaints about the conduct of the police, the wife, her solicitors and to an extent, the Court. Relevantly, however, the affidavit annexes as JRF13 a draft affidavit which the husband deposed he had not been able to complete. At this stage the husband was representing himself and it is clear that he intended, by proceeding in this way, to adopt the contents of the draft affidavit as being true and correct. In my opinion, the material contained may be unsworn but is not hearsay because it deposes to matters directly within the knowledge of the husband. For that reason I will refer to it and pay regard to it.
On page numbered 6 of the draft affidavit, the husband deposes to the fact that Mr and Mrs P were the only friends who had any considerable financial status and trusted the husband. Having given details of the relationship with [Mr & Mrs P] and certain anticipated difficulties upon arrival in Australia, the draft affidavit continues:
“That is why in May 1998 Mr and Mrs P agreed to deposit a sizable amount of money of 50,000 pounds in a bank in Australia with interest to be repaid at 4.5% after we arrived. The initial idea was that after I had secured employment and a home it would be easy for me to obtain a home mortgage and repay Mr P and Mrs P on the Promissory Note loan agreement.
In May 1998 Mr P and Mrs P travelled to London and we signed the Promissory note … My wife knew of this loan, she has always resented this transaction, as it was done with my friends help whilst her family did nothing to assist us.”
On page 7 of the draft affidavit it continued:
“Mr P had been given 2 years to live with terminal liver cancer when we found out about his health being so bad, early on I had arranged with my mother to make repayments to him and Mrs P his wife.
This was done by transferring 20,000 pounds from my mothers UK bank in mid 2002 and later when I returned to the UK I returned 5,000 pounds to them in June 2004.
In January 2005 Mr and Mrs P visited us for what we all knew would be the last time we would see Mr P and a sum of AUD $90,000 was given to them.”
On page 8 the affidavit continued:
“Without my financial records and bank statements from my garage at Property S I can only estimate that I transferred between 30,000 - 33,000 pounds of my own funds from earnings in the UK in addition to the 50,000 pounds loaned from Mrs P and Mr P to the Australian commonwealth bank account in Perth between May 1998 and our final immigration to this country in February 2002, the rest some AUD $20,000 was from accrued interest in the account fund rollovers each term deposit period.”
The wife’s next affidavit filed 1 May 2009 generally takes issue with the assertion that any moneys are owed to the intervenor. It goes on to assert that the intervenor and the husband were estranged until the beginning of 2003 because the husband had sued his parents for £10,000 in England. Indeed it is plain that that legal proceeding did take place.
Otherwise there was little that the wife could say other than that she knew nothing about the alleged loans, and that is what she said.
In his next affidavit filed on 5 May 2009, paragraph 24 and following, the husband returned to the issue. Relevantly, he said:
“We therefore lent money from [Mr & Mrs P] to finance purchase of the home in Australia as an alternative to taking out a loan from a bank.
Monies were transferred initially from [Mr & Mrs P] in cash into my UK bank account on a monthly basis, and when sufficient funds accrued money was drawn out by cheque or bank draft when the currency exchange was favourable and transferred to the Commonwealth bank in Victoria London and then by them to the term deposit account held in Perth, WA.”
The husband went on to annex true copies of documents purporting to show the transfers, a repayment to Mrs P in 2004, and an agreement with his mother to repay the loan. He went on to say that the wife was well aware of the loan to [Mr & Mrs P] from the time it was made.
In his next affidavit filed on 25 February 2010, the husband, having searched the garage attached to the matrimonial home, annexed a document as JRF1. He deposed that this was his parents’ ANZ account savings book dated 2004, with entries confirming the accumulation and transfer to Australia from the UK Barclays Bank deposit and the ANZ deposit account, making up the total withdrawal in the sum of money of AUD $100,000. Why the husband should have been in possession of his parents’ bank records remains unclear.
The husband, in paragraph 1 of this affidavit, made a number of self-serving assertions as to the nature of these bank records. They have not been deposed to by the intervenor, who would have had direct knowledge of the matters contained in them. I do not accept, without more, that they prove what the husband says they prove. They do appear to show a withdrawal of $100,000 in May 2004 and a number of antecedent deposits bringing the account up to over $100,000. There is nothing in the material of itself to show what those funds were used for.
On 24 March 2010 an amended application was filed on behalf of the intervenor. It seeks that the parties pay the intervenor $154,000. The application was supported by an affidavit of Mr Warnakulasuriya filed on 24 March 2010.
From that affidavit it is apparent that the intervenor suffered a major stroke on 1 December 2009 which resulted in her sustaining both physical and cognitive disabilities. The firm of FTL Judge & Papaleo Pty Ltd, of which Mr Warnakulasuriya is a director, has been appointed by the Victorian Civil and Administrative Tribunal in January 2010 to manage the intervenor’s affairs.
Essentially, that affidavit annexes a number of copied documents and purports to draw a number of conclusions from them. I would observe that to an extent the conclusions sought to be drawn are impermissibly argumentative.

The Claims of the Intervenor – Source Material

This concludes the examination of the affidavit material but leaves still for consideration the source material upon which the parties base their arguments. So far as I can see, the first document that touches upon transfers of funds that may be relevant to the matters with which we are concerned is one of the documents constituting JRF2 to the affidavit of the husband filed on 25 March 2010. No explanation is given for this document, which is a Lloyds Bank document. It records that on

7 October 1996 a sum of £20,080.26 was received by the partners of Francis and Francis. No explanation is given for this sum, and the husband has not explained it during his evidence. He obviously regards it as being relevant or he would not have exhibited it to the proceedings. I note that it well pre-dates any question of payments made to him on his own version of events by Mr and Mrs P.
The next documents that seem to me to be relevant are parts of exhibit JRF8 to the husband’s affidavit filed on 5 May 2009. They show that the sum of $85,982.05 appears to have been accepted for remittance to Australia on 15 July 1998 to a term deposit in Western Australia in the name of the husband. I infer from the document that this was an exchange of £34,000.
The next page in the exhibit purports to show the receipt of £5000 on 29 September 1998 from Mr Ferdinand in London, converted to $14,282.03.
The next page in the exhibit is a letter to Mr Ferdinand from the Commonwealth Bank dated 31 December 2001 confirming funds to mature on 29 January 2002 of $210,000. Earlier correspondence (later in the exhibit) confirms that a sum of approximately the same amount had been on deposit for some time.
It is therefore clear that by late 2001 Mr Ferdinand had a sum in excess of $220,000 in the bank in Australia which on any view was plainly enough to fund the purchase of the matrimonial home for $195,000. The next document to which I would make reference is exhibit I-1, which appears to be correspondence from a firm of lawyers in London to the husband. Messrs D.B. Thakerar & Co write on 9 May 1998 enclosing a promissory note as advised.
The note signed by Mr Ferdinand, and it would appear Mrs P, as it is asserted on 9 May 2008, under the heading “Terms and conditions of Promissory Note” says:
“As of the above date, I Mr [Ferdinand] of [address omitted]. Promise to re-pay Mrs. Mrs P, of [address omitted].
The sum of £50,000 (Fifty Thousand Pounds and Zero Pence [Pounds Sterling]/Equivalent) + interest at the annual rate of 4.5% on the entire sum borrowed as outlined above, against Property Holdings in Australia until re-payment of the loan has been completed.
The sum is to be re-paid by instalment over an indefinite period of time.
However, in the event of my sudden and unexpected demise/death, any outstanding monies or balance of the above aforementioned loan, are to be settled with Mrs P, before any other disbursements are made from the proceeds of my entire estate.”
The next relevant document is exhibit I-3 which purports to be an IOU signed by the husband and dated 13 July 2002. That under the heading “Sterling Loan Advance”:
“I [Mr Ferdinand] of Property S agree to borrow the sum of £20,000 pounds sterling from Mr and Mrs F [address omitted] at 4.5% interest. Term 10 years for repayment to Mrs P [address omitted] as agreed against my property Property S, Australia. In the event of my death or incapacity I instruct my executor to discharge my loan to Ms F from my available assets and/or estate.”
The document is then signed by Mr Ferdinand.
The final document, which is exhibit I-2, is a document purportedly dated 10 January 2005 and has the heading “Terms and Conditions of Promissory Note”. It reads:
“Lender Ms F of: [address omitted]. As of the above date, I [Mr Ferdinand] of: Property S. Promise to repay Ms F of [address omitted]. The sum of AUD$140,00:00 (one hundred and forty thousand Australian Dollars and zero cents) Plus interest at the annual rate of 4:5% on the entire sum borrowed as outlined above against the property holding of Property S. Until repayment of the loan has been completed. The sum is to be repaid by instalments over 10 years from the above date until 9th January 2015. In the event of my death/demise any outstanding monies or balance of the above aforementioned loan are to be settled with Ms F, before any other disbursements are made from the proceeds of my estate.”
The document purports to be signed by the husband, the intervenor and witnessed by one Mr B.
The next document to which it is appropriate to refer is exhibit I-4 which is a cash receipt book kept, it would seem, by Mr Ferdinand. It is filled in in what is clearly his handwriting and purports to have the signature of the intervenor, which certainly bears a similarity with the signature on the document constituting exhibit I-2. I have been through the entries in that exhibit and it appears to me that Mr Ferdinand made the following payments to the intervenor:
28 November 2004, $1000; 2005, $7000; 2006, $4000; 2007, $5500; 2008, $3000.

The Claims of the Intervenor – Oral Evidence

In oral evidence given before me about this issue, the wife stuck to her position that she had never known of any of these transactions. She maintained that there were either no loans – no moneys borrowed at all – or that, if they were borrowed, they were borrowed by the husband alone and without her knowledge. She stuck firmly to this evidence in cross-examination. This evidence was consistent with her assertion that the husband at all times completely controlled the family finances and kept her, so to speak, in the dark. She did say that the question of any funds being borrowed from the respondent’s mother was never discussed with her, and that the first time she learnt of all this was when the matter came to Court.
When the husband gave evidence he asserted that he borrowed $125,000 from [Mr & Mrs P] of the $195,000 total purchase price. He said that the first home loan grant had paid the stamp duty on the property. He said that £50,000 was worth over $120,000 at that time.
The husband’s evidence as to the wife knowing about the money being borrowed was, in my view, unconvincing and elliptical. In summary, he maintained that she knew because the other parties (either [Mr & Mrs P] or his mother) had told her of the loan. At no stage did he assert that he himself had ever discussed any of these financial dealings with her.
In my view, it is clear that the wife never knew anything about the borrowings, and I fully accept her evidence in this regard.

The Claims of the Intervenor - Consideration

What is one to make of all this? I should make it clear that I am not, at this stage, considering the application of the relevant legal principles to what should happen in respect of any loans to the intervenor that are established on the facts. I am merely wrestling with the facts themselves.

In my view, it is clear that the husband must have borrowed moneys from Mr and Mrs P to enable the purchase of the matrimonial home without any mortgage or other debt. The tenor of the evidence he gave, both in his voluminous affidavit material and otherwise, suggests that he was by no means overly successful as an income earner in Britain, although I suspect he has sought to diminish his success with a view to gain in these proceedings.
It is clear that there was approximately $200,000 in an account in the husband’s name by late 2001 and it was from that source, quite clearly, that the purchase price of the matrimonial home derived.
On his own evidence, and treating it as a concession against interest, $125,000 of the $195,000 purchase price was borrowed from Mr and Mrs P.
I think it is more probable than not that the evidence of the husband to the effect that he kept the moneys in an account in Britain, and transferred them from time to time when the exchange rate was favourable, was correct. It has some measure of objective backing in the exhibit showing the transfer in July 1998 of some $85,000, and the subsequent £5000 sum in September (JRF8 to the affidavit filed on

5 March 2009).
It may well be that sums were being advanced to the husband as early as 2006 as exhibit JRF2 to the affidavit filed on 25 March 2010 tends to suggest.
What is clear is that by 9 May 1998 a firm of solicitors had been instructed to draw a document to record the dealings between Mr and Mrs P and the husband. During the hearing I expressed the view that this was drawn by a firm of solicitors, albeit that it was very poorly drawn. On further consideration, I think that the “Promissory Note”, exhibit I-1, was probably drawn by Mr Ferdinand and merely formalised before the solicitors. The terms of the Note are consistent with Mr Ferdinand writing in the first person singular. Nothing ultimately turns on who the author was. Given that some £34,000 was being transferred in July 1998 and a further £5000 later in 1998, it seems to me that the Promissory Note was always somewhat misleading.
What I think is more probable than otherwise is that [Mr & Mrs P] advanced moneys from time to time to a total of £50,000. I will never know exactly when those funds were advanced but in the ultimate, it seems to me that this occurred.
The terms of the agreement are strange. Although there is reference to the calculation of interest at an annual rate of 4.5 per cent, it is not clear whether this was intended to be cumulative or simply a payment calculated on an annual basis on the amounts outstanding. The agreement had no term as to the finality of repayments which were capable of taking place over “an indefinite period of time”.
Mrs P has not given evidence. Despite having returned to Britain for some months last year, it does not appear that Mr Ferdinand has made any endeavours to contact her, which is surprising given that as he would have it, Mrs P and her late husband were virtually the only really true friends he had. Certainly the only ones with any funds. I do not think that the evidence goes far enough to establish a Jones v Dunkel point on this issue, but the failure of the husband to seek to obtain evidence from Mrs P is surprising given the centrality of her possible evidence to the matter in issue, which was well-known to the husband by the time he was in the UK.
It is clear the agreement did not reflect what actually took place because the totality of funds were not transferred until after the date of the Promissory Note.
It is by no means clear to me that the reference to interest in the Promissory Note was intended to be enforced. The accounts given by the husband of the repayments that he made were repaid in lump sums with no reference to interest.
I do not think that the documents tendered by the intervenor are fraudulent or forged. I simply do not accept that they have been produced after the event to provide a fraudulent reconstruction. Nonetheless, they reflect some very muddled thinking at all times by all concerned.
It seems probable to me that [Mr & Mrs P] were repaid £20,000 in 2002. That is consistent with exhibit I-3.
That left the sum of £30,000 to be repaid, on a date that had absolutely no finality to it and which it was open to Mr Ferdinand to extend for as long as he wished. There was no periodicity to instalments in the Promissory Note with [Mr & Mrs P] nor any final date for repayment and it was therefore effectively on one view unenforceable.
I have no doubt that it is more probable than otherwise that Mr and

Mrs P had no intention of enforcing their debt. On any view it was entered into, if one were to accept the terms of the Promissory Note, in May 1998. It was not apparently paid out until 2005, after the limitation period had expired. [Mr & Mrs P] never took any action to recover any of the interest or capital apparently owing to them in the meantime. The inference is overwhelming that while [Mr & Mrs P] were prepared to and no doubt happy to receive repayment, they never had any intention of enforcing same. There is no evidence that even on the best case for the husband, he repaid any moneys until 2002 and no further funds until 2005, apart from the £5000 allegedly repaid on an interim basis.
That brings us to the terms and conditions of the Promissory Note dated 10 January 2005, being exhibit I-2.
It should be noted that if the husband is to be believed, Mr and Mrs P, or perhaps Mrs P alone, had already been repaid £25,000 by this time. They were, therefore, owed at most £25,000 which, on the then extant rate (26 January 2005) of 2.429 dollars to the pound, amounted to about $60,725 (I have obtained the relevant interest rates for the period via the internet).
On no possible basis could the loan of £50,000 have generated amounts to push the indebtedness to $140,000. 4.5 per cent of £50,000 is only £2000 per year, and even from 1998 to 2005 would only be another £14,000.
Thus, the provenance of the figure allegedly owing in 2005 is in my view extremely debatable.
The husband has purported to give a methodology to the alleged debt to his mother in exhibit JRF2 to his affidavit filed 25 March 2010. It is a completely self-serving document, but it is interesting. It shows a debt alleged as at August 2002 in the sum of £20,000. According to the historical rates given on x-rates.com, at the rate on 1 August 2002 this would equate to a loan conversion of almost $58,000.
I note that the exhibit to the husband’s affidavit assumes a constant rate of exchange of 2.25 dollars to the pound but, as I have indicated, that is inaccurate.
It follows immediately that the methodology that underpins exhibit I-2 is significantly flawed.
I note also that the exhibit JRF2, under the heading in red “Owed AUD$ Loaned” details $45,000 which is said to have converted to the 20,000 pounds allegedly repaid in August 2002 to Mrs P. As I have said, it is apparent that this methodology is inexact and suggests that in fact $45,000 was not advanced, because it would not have produced 20,000 pounds.
Although the asserted calculations of interest may make sense to the husband, the calculations set out in exhibit JRF2 are incomprehensible to me and no endeavour has been made to provide any methodology.
It would seem more probable than otherwise that what really happened was what is set out in the only affidavit actually sworn by the intervenor, and filed on 27 February 2009.
Although Ms F has not been available for cross-examination, and I must approach her affidavit with that firmly in mind, her assertion in paragraph 4 that she repaid £20,000 in August 2002 makes sense. I note that the moneys were withdrawn from “our account with Lloyds Bank”.
A further amount was also drawn out of “our account” of £30,000 on 26 January 2005.
The exchange rate, as indicated on the internet, for 26 January 2005 was 2.429 dollars to the pound and the sum of £30,000 would be of the order of $72,870.
The difficulty, however, is that moneys were plainly on the intervenor’s own case, advanced out of sterling funds already available to her. There is no process whereby those sums were translated into Australian dollars.
The sum of £20,000, if lent in August 2002, would have been exchanged at a rate varying between about 2.9 (1 August 2002) to 2.8 (31 August 2002). If one takes the midpoint at 2.85, it would equate to $57,000. That would give a grand total of $132,000.
Nonetheless, these sums were not the subject of any meaningful conversion into dollar figures.
I think it is more probable than otherwise that the sum of $140,000 seized upon in the Promissory Note dated 10 January 2005 was an endeavour by the husband to roll up his then perceived debts into one outcome for the purposes of convenience. This, of course, ignored any payments he might have made before then.
It is plain, however, that the agreement asserted in 2005 was as difficult to construe and enforce as the earlier one from 1998. It was to be repaid “by instalments over 10 years from the above date until 9th January 2015”.
The implication is plain that there would be some periodicity to payments, very possibly annual or monthly.
The payments made by Mr Ferdinand to his mother followed no discernable pattern and amounted to very small sums. In most years not even the interest of 4.5 per cent was paid.
The time for full repayment of the moneys allegedly identified by the 2005 Promissory Note has not yet arrived because we are not yet at January 2015.
In my view it is more probable than otherwise that the intervenor would never have enforced the debt on an interim basis. It seems very probable that she and Mr Ferdinand recorded their transactions with some particularity, as exhibit I-4 suggests. Nonetheless, there is no suggestion that the intervenor ever sought to sue or otherwise pressure the respondent about his debt. Given that Mr Ferdinand had sued his mother in the late 1990s and that it is entirely probable, as the wife asserts, that his relations were estranged for a while thereafter, it is clear that the intervenor must have been of a very forgiving nature to advance substantial funds to her son in 2002 and/or 2005.
In my view the loan, if such it was, to the husband was attended by the same degree of beneficence that marked that by [Mr & Mrs P]. The lender would be pleased to receive their money back but was in no hurry to do so and would not have enforced the debt.
In these very unsatisfactory circumstances, it is wholly impossible to adopt any precise figure as to the amount owed by the husband to his mother pursuant to the informal arrangements that were entered into, as I find, at some point between 2002 up to 2005. It seems probable to me that £50,000 in clear funds was repaid to Mrs P together with a further £5000 which it is impossible to allocate in any particular way.
While it is clear that the sums lent amounted to in excess of $130,000 or $140,000, it is wholly impossible to be more precise than that.
For reasons to which I will come, however, it is not necessary to be more certain, which is just as well because in my view it is not possible to be so in any event.
When dealing with this question of the whole saga of the loans I should point out that there have been no submissions made to me as to the effect of the Promissory Notes as charges. No evidence has been given to support or deny the proposition that these documents constituted or did not constitute a charge in the formal legal sense.
In these circumstances I will simply say that, on my findings, the husband borrowed moneys from [Mr & Mrs P] which he repaid with the assistance of his mother. These loans were never identified to the wife.
They constituted approximately $120,000 or thereabouts of the total purchase price of $195,000. The rest was plainly made up of savings effected by the husband, together with the sale of certain chattels and realisation of other assets (deposed to at laborious length in the husband’s affidavits) and by interest upon the amounts thus invested over what was after all a fairly lengthy period of time from about 1998 until 2002, when the funds were eventually called upon.
It is plain that the intervenor has an interest that requires to be considered.

Potential Inheritances

Another issue raised by both parties is the prospect that the other may achieve considerable benefit in the future by way of an inheritance.
It suffices to say that I found the wife’s answers in evidence compelling and inherently believable. It may well be that her parents are reasonably well off and it may well be that they have sold a property for a lot of money, as the husband asserts. Nonetheless, there is no reason to believe that the demise of both the wife’s parents is imminent and the question as to her relations with them was by no means clear from the evidence. It is wholly uncertain as to whether or not she will receive any bounty by way of inheritance from her parents, and the prospect is so uncertain that I am not prepared to make any allowance for it in the pool.
In the husband’s case, however, the matter is far less unclear. There is in evidence before the Court a Will of the intervenor which – and I accept the submissions of the wife’s counsel on this point – is highly likely to be the last Will she ever makes. In it the husband will achieve a certain degree of benefit in certain properties owned by his mother and presently being administered by FTL Judge & Papaleo.
While it is true that the intervenor’s circumstances are uncertain because she seems likely to require a considerable degree of care, and may be required to put up an expensive bond for nursing home accommodation or the like, it seems more likely than otherwise that the husband will at some point benefit from an inheritance from his mother.
The difficulty here, however, is that there is no compelling evidence as to the likely realisation of any such benefit. There is no evidence as to the projected lifespan of the intervenor and, while it is clear that she is under a disability, it is not clear that that will necessarily be fatal in the short or even medium term. It is, in my view, inappropriate and would be distasteful to speculate as to her future health prospects.
All I will say under this heading is that, while it seems likely to me that the husband will inherit something, it is not in any way possible to say how much or when.

Contribution

Having staggered, to an extent, through the issues of the pool, which as I have indicated I found all but impenetrable, I turn to deal with the parties’ contributions.
Notwithstanding the all too voluminous material put on by both of the parties, and more particularly the husband in this regard, I think that the issues here are clear.
Both parties worked until the birth of the first child following which, the wife did not work thereafter but was a full-time homemaker.
The husband made the money and the wife looked after the home. This is a common enough outcome and one that is often felt appropriate to give rise, in a relevantly lengthy relationship such as this one, to a conclusion that the contributions were roughly equal.
Here the parties married in 1992 and separated, it would appear, in 2006. It is in fact not possible to find (at least I have not been able to) any precise indication as to when separation took place other than a reference in the initial Information Sheet to 11 June 2006 – a date not in any affidavits. It appears to have occurred in 2006. The husband was clear in his evidence that the wife had been a good wife up until 2006, at which point from his perspective she started to disobey him.
The closest I have been able to find of any precise indication is in an indication given to the report writer, Mr Das, in which the wife indicated that separation had taken place about 18 months before the time she saw him. That would indicate that separation took place about 18 months before Mr Das’ interview with the wife on 4 March 2008; in other words, about September 2006.
I note that Ms Shing, the other report writer, records the date of separation as 11 June 2006. It would seem that separation took place between June and September 2006.
As I have already indicated, the husband was not a raging success in his employment history. He clearly did his best to provide for his wife and family, but it is his own case that he was largely ineffectual in doing so. The parties’ relationships with their respective in-laws seem to have been volatile, and they seem to have undergone a number of vicissitudes during the period before they immigrated to Australia.
I have no intention of lengthening an already lengthy judgment by traversing the matters set out in detail in the parties’ affidavits. I have no doubt whatever that the husband earned all the money and the wife, from the birth of the first child onwards, was a full-time homemaker. There is nothing to suggest that she was not at all material times a loving mother and competent housewife.
This, however, brings us to consideration of another matter. It is the wife’s case that throughout the relationship and, more particularly the marriage, the husband was extraordinarily controlling both as to finances and all other aspects of their lives. It was the wife’s case that she was strictly controlled as to how much money she spent, that her social life was keenly controlled by the husband, who essentially prevented them from ever going out and in a general way sought to browbeat and put her down.
While the husband disputes this, his own affidavit material makes it absolutely clear that everything the wife says about him is absolutely right. Even his first affidavit has a litany of complaint about the alleged fecklessness of the wife with money matters. It deposes to the complete control by the husband of the parties’ finances.
In his oral evidence before the Court, the husband deposed at some length about his alleged generosity in the financial dealings to the wife, albeit qualified by the fact that he stoutly maintained that his income was of course at all material times fairly low. He described going to the supermarket and paying the supermarket bills with his credit card and then giving the wife $50 to $100 additional funds to spend. From the way in which he gave his evidence, it is plain that he regarded this as a significant bounty, although he also complained that the wife complained to him of his inadequacies as a financial provider. What he failed to appreciate, of course, was that $50 to $100 is not a lot of money for a woman to clothe herself, three children and deal with all the ancillary costs of a household.
It is not necessary or appropriate for me to detail at great length the very extensive affidavit material filed by the husband which in my view shows, beyond a shadow of a doubt, that he is indeed an extremely controlling, difficult, narrow-minded and inflexible individual. If anyone reading these reasons has any doubt, they have only to work through the page after page after page of criticisms made by the husband, both of the wife, Victoria Police, the independent psychologist who prepared reports for the Court and indeed almost everyone else who he perceives to be antithetical to his interests.
It is a regret to me to have to make a finding of this character, but the facts of this case do make the matter one that is an issue. The husband was a controlling, domineering, mean, mean-spirited and un-generous individual. Living with him must have been a purgatory.
This is relevant (and I repeat it is regrettable that I have to make findings about this matter in these terms) because the wife’s case in part was a Kennon case.
In Kennon (Kennon v Kennon (1997) FLC92-757), the Full Court of the Family Court of Australia made observations about the effect of domestic violence upon the way in which a Court should approach the contribution of a party. That case, of course, involved serious physical domestic violence.

However, the Court was at pains to indicate that it was not limiting its observations to allegations of physical violence only (see Kennon at p.84-94). The class of matters which might give rise to some weighting in favour of the oppressed party was not closed or limited by that decision, although the Full Court was clear that such cases were “exceptional”.
In this case I think the contribution of the wife must be weighted in her favour, precisely because of all the qualities that the husband so vividly expresses in his affidavits and in his oral evidence.
Absent this behaviour, I would have treated the contributions as being essentially equal but, in my view, there would be an adjustment of some 10 per cent in the wife’s favour under this heading, if this case was capable of straightforward determination in the ordinary four step way.

The Section 75(2) Factors

Nothing in this case is simple. Both parties have a very uncertain employment future.
One child is almost now an adult ([X]). Another child, [Y], is well on her way and lives all her time with the mother. The mother will also have continuing responsibilities to assist [X], albeit that she is over 18, because she is still a student.
The third child, [Z], lives predominantly with his father and the father will have to provide for him. It is not clear whether he is spending any time at all with his mother and other siblings. His estrangement from them formed a major part of the children’s issues already disposed of.
The husband’s health is uncertain. He has back and other problems and I accept that at his age his future employment, whether as an [occupations omitted] or in some other capacity, must be unclear.
In this regard I should say that I found the husband’s explanation for his return to England for some months last year to try to keep alive, so to speak, a [omitted] qualification, thoroughly evasive and unsatisfactory. He tried to maintain the position in his evidence that he had no intention of returning to England, but that belies common sense. The fact is he spent four months last year trying to sustain a qualification that is only of any use to him in the UK. This evasive and unsatisfactory evidence in my view characterised his evidence generally and although I have not said so earlier, I should record now that he was a poor witness. A number of his answers were self-serving, self-pitying and unresponsive to the questions put and he was, in general terms, a witness whose demeanour would not overly inspire confidence.
By the same token, the evidence of the wife was given in a curiously monotonous tone, and some of her answers likewise strain credulity. While it is clear that she never knew anything much about the family’s finances, her suggestion that she had absolutely no understanding as to where any of the funds that constituted the purchase price of the matrimonial home came from was in my view somewhat farfetched.
Nonetheless I give credit to the fact that the wife had undoubtedly been seriously browbeaten by the husband over many years, and her demeanour was redolent of somebody worn out by the litigation and by her interrelationship with this extraordinarily demanding man. She said so in one of her affidavits and I accept it.
The husband’s future employment prospects are, as I say, extremely uncertain. The wife’s are even worse. She has not worked full-time for many years, and her employment before then was purely clerical and/or administrative as best I understand it.
With the somewhat worn down and undynamic personality that I find she possesses, the wife will plainly struggle to obtain future employment.
Once again, without traversing the great tranches of evidence that the parties have put on, it is my opinion that the parties’ future needs will be roughly commensurate and I do not propose to make any adjustment in favour of either under this heading.
It should also be noted that the enormous amount of material put on by the parties as to relevantly minor issues, such as who paid the rates in the matrimonial home in more recent times, is in my view more an indication of how obsessed they are with this ultimately trivial issue than anything else. I have not sat down and sought to disaggregate the enormous number of bills that the husband in particular has put forward. It seems to me more probable than otherwise that both parties contributed as best they were able to the household expenses from time to time.
I do not think it is appropriate to make any adjustment in favour of the husband because the wife has lived rent-free, as he puts it, in the matrimonial home since he himself was evicted by Court order. That the husband should seek to obtain a commercial return as against his wife and children during this period, says everything about his own meanness of spirit. In my view, the fact is the house was unencumbered and the wife and children had to live somewhere. It would be highly contrary to equity and good conscience to require an accounting under this heading.
The husband’s real complaint, of course, is that he himself was ejected from the matrimonial home. That decision was a matter of Court order following compelling evidence that it was necessary that this be done. It is not appropriate to make an adjustment in the husband’s favour because his own conduct produced the result of which he now complains.

Just and Equitable

Here one comes in a sense to the nub of the matter. It is plain on the authorities and in particular that of Biltoft & Biltoft (1995) FLC 92-614, that the Court cannot disregard the interest of the intervenor but that there is no requirement that the rights of the intervenor be accorded priority. It was held in Biltoft & Biltoft at P82, 128 that:
“There is no requirement that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under s 79, nor is there a rule of priority as between the creditor complainant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of a spouse.”
The passage just quoted follows an earlier passage in which the Court made it clear that in certain circumstances, the Court may in fact decide to give no weight to the unsecured liabilities. The Court said at page 82,127:
“Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred”.
Although I have been referred to copious authority, indeed more than in my view was warranted, I have had regard to all the cases with which I have been provided. Nonetheless, the passages I have set out above from the Judgment of the Full Court in Biltoft seem to me to indicate sufficiently clearly what the Court’s discretions are. How they should be applied, as the authorities show, varies necessarily according to the facts of each case.
I note that there is a tendency for the Court to assess the claims of an intervenor at the fourth stage of the methodology, namely deciding what is just and equitable (see for example Worsnop v Worsnop (No 2) [2007] FamCA 1315 at 221-225).
Here counsel for the wife sought to have the borrowings, from first

Mrs P then the intervenor, set aside wholly to the account of the husband. That proposition, however, misconstrues the authorities.
While it is true, as I find, that the husband never told the wife anything about the moneys borrowed, the fact is that the ownership of the matrimonial home simply would never have been achievable without the $120,000 or so that was borrowed from Mrs P. Whether this be seen as a loan to be repaid or simply assessed as a contribution made by the husband of an overwhelming nature towards the matrimonial home, it is in my view ultimately a matter of no moment. Both those avenues arrive in my view at the same conclusion.
In the circumstances it seems to me far more appropriate, however, to regard the loan advanced by the intervenor as a freestanding debt to be given proper weight in accordance with the principles enunciated in Biltoft. That is because this debt is still outstanding and has not been repaid, and although it cannot be precisely quantified it is substantial and is still extant. Although the enforceability of the debt in its entirety was, prior to the intervenor’s incapacity, open to doubt for the reasons I have expressed, it is not a debt that justice and equity requires to be wholly set aside.
In my view there is no question but that the matrimonial home must be sold. Neither party has the capacity to buy out the interest of the other unless virtually no order is made in the other’s favour and that is not an appropriate outcome. This will distress both of the parties but they have to face the financial reality. Neither has any income to speak of and they plainly both have a significant interest in the matrimonial property.
In my view it would be appropriate, absent other considerations

(to which I shall come), to allot a sum of $70,000 to the intervenor. The authorities do not indicate the extent to which there is any methodology to approach the task that Biltoft describes. It is a matter of doing what seems just and equitable in all the relevant circumstances.
In my view, the allocation of $70,000 to the intervenor is appropriate because:
a)without the funds ultimately advanced by the intervenor, there would be no or, on any view, very substantially reduced equity in the matrimonial home;
b)notwithstanding (a), any sums advanced to the intervenor are more likely than otherwise to benefit the husband directly or indirectly (i.e. through his inheritance), at least to an extent, that extent being as it is unascertainable precisely;
c)the husband, for all his difficulties, is a qualified [omitted] and appears to be capable of obtaining qualification as a [omitted], whereas the wife’s future employment prospects are so uncertain as to be almost negligible; and
d)the wife still has to look after two children, even though one is almost an adult, whereas the father only has to look after one.
It is readily apparent that in making the above observations I am, in a sense, conflating two theoretically separate issues, namely the interests of the intervenor and the interests of the parties qua one another. Nonetheless, these two issues are intimately intertwined in the circumstances of this case. If the intervenor was still hale and hearty and had truly separately identifiable interests, the matter would stand otherwise.
In my view the matrimonial home must be sold. There is no alternative. Following the deduction of the usual ancillary costs, the remainder should be divided as to:
a)20 per cent to the intervenor (this is not necessarily the same figure as that earlier indicated – I will return to this shortly);
b)30 per cent to the husband; and
c)50 per cent to the wife.
The wife should retain all chattels in her possession, that is to say all chattels in the matrimonial home or otherwise in her possession, apart from anything that is in the garage attached to the matrimonial home.
The wife is prohibited from entering upon the garage without Court order. If there is anything in the garage she wishes to assert is hers, she will have to come to Court first before any endeavour to remove it.
The wife should keep her superannuation which, like the husband’s, is essentially trivial. In any event it is clear that the superannuation earned by both the parties is predominantly generated so long ago as to owe nothing whatever to the other’s contribution.
The wife should retain her jewellery and I do not think it is necessary, in the context of this case as a whole, to make any adjustment in the husband’s favour in this regard. The $2,000 value is trivial in the overall scheme of the parties’ assets. If it were necessary, I would allot the less than 1% loading to the wife to enable her to retain the jewellery.
The percentage calculation for the division of the proceeds of the sale of the matrimonial home is necessarily an imprecise one. The reality is that about $120,000 out of $200,000-odd was initially contributed by the moneys lent to the husband. That is a proportion of roughly six out of ten.
Any subsequent increase in the value of the property would, of course, simply have occurred through market forces.
The sums which were contributed by the husband to the purchase of the matrimonial home in 2002 which were not borrowed (i.e. about $65,000) plainly would fall to be considered as part of the equal contribution of the parties in the light of the fact that the relationship had then endured for ten years and the contributions of the parties were roughly otherwise equal.
In my view – and assuming that the price of the property is somewhere between $250,000 and $315,000 (admittedly a large gap but one which the evidence does not precisely enable one to bridge) –to return half or even approximately 30 to 40 per cent of those sums against the original borrowing would be to deprive the wife of any fair reward for her contribution. It would also pay insufficient regard to the fact that the husband himself is likely to gain directly or indirectly from the sums payable to the intervenor.
These are not areas of precision. They involve matters of judgment and discretion.
In my opinion, the intervenor should receive 20 per cent of the proceeds of sale of the matrimonial home.
If the house is sold, as the husband asserts, for something of the order of $315,000, then the intervenor’s estate will receive slightly in excess of $60,000. The ultimate figure may be higher, given the current housing market if the husband’s valuation was correct, or lower if it was not. This sum will be received, it should be noted, five years before the nominal termination date of the 2005 Promissory Note. That is a very good return to the intervenor, bearing in mind that the payments made up until 2008 scarcely covered interest payments. In my view, it is a fair and reasonable outcome for the intervenor in the circumstances of the case as a whole, including the impecuniosity of the husband and the wife.
Once the intervenor’s claims have been disposed of, it is clear that the wife’s claim is the stronger. I am not proposing to order a 40/40 split or even a 50/30 split. In my view, the wife’s needs should properly give rise to a payment of 50 per cent of the total sale price to her with the remainder going to the husband.

Conclusion

This has been a very messy case. Largely because of the husband’s personality, the scope of the materials has been giant relative to the amounts of money and property in issue. It has been a major labour to try to work through the materials and produce any sort of coherent judgment. I say this not by way of complaint but rather to indicate why I think it is appropriate that I should give the parties an opportunity to consider these Reasons for Judgment and to address me as to the final form of orders that I should make.
I have prepared draft orders, which it will be noted inter alia have the effect of excluding the husband altogether from the garage and the matrimonial property.
It is clear to me that the husband still desires to re-enter upon the property if at all possible. Counsel made a submission that he should be allowed to do so immediately upon the conclusion of the evidence and submissions in the case, a submission I regard now as being ludicrous and did so then.
Clearly, Mr Ferdinand would seek to compel his wife to reconcile if he could. It is highly desirable he be kept well out of the picture. His hopes for reconciliation are unrealistic and oppressive.
I will give counsel an opportunity to consider these Reasons for Judgment, and my draft orders, and will hear from them further.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 18 May 2010